Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

Supreme Court briefSep 21, 2023

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No. 22-451

IN THE

Supreme Court of the United States

____________________

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.,

Respondents.

____________________

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

Circuit

____________________

BRIEF OF AMICI CURIAE U.S. SENATORS

SHELDON WHITEHOUSE, MAZIE HIRONO,

DIANNE FEINSTEIN, AND ELIZABETH

WARREN IN SUPPORT OF RESPONDENTS

____________________

ERWIN CHEMERINSKY

Counsel of Record

UNIVERSITY

CALIFORNIA,

BERKELEY

SCHOOL OF LAW

LAW BUILDING 215

BERKELEY, CALIFORNIA 94720

(510) 642-3483

echemerinsky@law.berkeley.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

STATEMENT OF INTEREST .................................. 1

SUMMARY OF THE ARGUMENT .......................... 1

ARGUMENT .............................................................. 3

I. CHEVRON, WHICH IS VITAL TO CONGRESS’S

ABILITY TO PROTECT AMERICANS THROUGH

EFFICIENT

AND

EXPERTISE-BASED

REGULATION, IS UNDER ATTACK IN THIS CASE

BY PRO-CORPORATE SPECIAL INTERESTS .............. 3

A. Regulation Is A Public Good That Protects

People’s Health, Safety, And Well-Being ........ 3

B. Chevron Deference Encourages Efficient

And Effective Regulation ................................. 6

C. Petitioners’ Amici Are Collaborators In A

Decades-Long, Industry-Funded Attempt

To Undermine Government Regulation ........ 12

II. THE COURT SHOULD REJECT EFFORTS TO

ENLIST IT IN AN INDUSTRY-DRIVEN

DEREGULATORY AGENDA ..................................... 18

A. The Attack On Chevron In This Case Is

Part Of A Larger, Industry-Driven

Campaign To Undermine Regulatory

Agencies And Expand Corporate Profits ....... 19

B. The Court Caused Upheaval Around

Agency Power In Recent Cases, Which

Should Be Allowed To Settle Before

Further Disturbing Settled Law.................... 28

CONCLUSION ........................................................ 31

TABLE OF AUTHORITIES

Page(s)

Cases

Aposhian v. Wilkinson, 989 F.3d 890 (10th

Cir. 2021) (en banc) .............................................. 26

Biden v. Nebraska, 143 S. Ct. 2355 (2023) ....... 28, 29

Box v. Planned Parenthood of Indiana and

Kentucky, Inc., 139 S. Ct. 1780 (2019) (per

curiam) ................................................................. 30

Chevron U.S.A., Inc. v. NRDC, Inc., 467

U.S. 837 (1984) ................................................... 6, 7

Gundy v. United States, 139 S. Ct. 2116

(2019) ...................................................................... 8

Mistretta v. United States, 488 U.S. 361

(1989) ...................................................................... 8

Seila Law LLC v. Consumer Financial

Protection Bureau, 140 S. Ct. 2183 (2020) ............ 6

Terminiello v. Chicago, 337 U.S. 1 (1949) .............. 10

United States v. Midwest Oil Co., 236 U.S.

459 (1915) ............................................................. 11

West Virginia v. EPA, 142 S. Ct. 2587

(2022) ................................................................ 3, 29

Statutes

21 U.S.C. §§ 608, 624 ................................................. 7

49 U.S.C. §§ 40103, 44701 ......................................... 7

Administrative Procedure Act, 5 U.S.C. §§

704, 706 .................................................................. 6

iii

Congressional Review Act, 5 U.S.C. §§ 801808 .......................................................................... 6

Other Authorities

Alan Zibel, Big Oil's Capitol Hill Allies,

Pub. Citizen (Feb. 10, 2021),

https://www.citizen.org/article/big-oilscapitol-hill-allies................................................... 22

Alex Guillén, Impact of Supreme Court’s

climate ruling spreads, Politico (July 20,

2022),

https://www.politico.com/news/2022/07/20

/chill-from-scotus-climate-ruling-hitswide-range-of-biden-actions-00045920 ............... 29

Alexander Hertel-Fernandez, Caroline

Tervo, & Theda Skocpol, How the Koch

brothers built the most powerful

rightwing group you’ve never heard of,

The Guardian (Sept. 26, 2018),

https://www.theguardian.com/usnews/2018/sep/26/koch-brothersamericans-for-prosperity-rightwingpolitical-group ...................................................... 19

AMANDA HOLLIS-BRUSKY, IDEAS WITH

CONSEQUENCES: THE FEDERALIST SOCIETY

AND THE CONSERVATIVE

COUNTERREVOLUTION (2014)................................ 20

Amicus Curiae Brief for the National Right

to Work Legal Defense Foundation, Inc.

in Support of Petitioners, American

Hospital Ass’n v. Becerra, 141 S. Ct. 2883

(2022) .................................................................... 13

Amicus Curiae Brief of Mountain States

Legal Foundation in Support of

Petitioners, King v. Burwell, 576 U.S. 473

(2015) .................................................................... 14

Amicus Curiae Brief of Mountain States

Legal Foundation in Support of

Petitioners, Utility Air Regulatory Group

v. EPA, 573 U.S. 302 (2014)................................. 14

Amicus Curiae Brief of the New Civil

Liberties Alliance in Support of

Petitioners, West Virginia v. EPA, 142 S.

Ct. 2587 (2022) ..................................................... 13

Amy Coney Barrett, Stare Decisis and Due

Process, 74 U. Colo. L. Rev. 1072......................... 30

Andy Kroll, Exposed: The Dark-Money ATM

of the Conservative Movement, Mother

Jones (Feb. 5, 2013),

https://www.motherjones.com/politics/201

3/02/donors-trust-donor-capital-funddark-money-koch-bradley-devos .............. 15, 19, 28

Br. Amicus Curiae of Chamber of

Commerce of the United States of

America in Supp. of Pet’rs ................................... 20

Br. for Pet’rs Loper Bright Enterprises, et

al. .................................................................... 20, 21

Br. of America First Legal Foundation as

Amicus Curiae in Supp. of Pet’rs ........................ 20

Br. of Cato Institute and Committee for

Justice as Amici Curiae in Supp. of Pet’rs .......... 27

Br. of Law Professors Kent Barnett and

Christopher J. Walker as Amici Curiae in

Supp. of Neither Party ......................................... 30

Br. of Pacific Legal Foundation as Amicus

Curiae in Supp. of Pet’rs ................................ 20, 26

Brief Amicus Curiae of Pacific Legal

Foundation et al. in Support of

Petitioners, Utility Air Regulatory Group

v. EPA, 573 U.S. 302 (2014)................................. 14

Brief Amicus Curiae of Pacific Legal

Foundation in Support of Petitioners,

American Hospital Ass’n v. Becerra, 141

S. Ct. 2883 (2022) ................................................. 13

Brief Amicus Curiae of Pacific Legal

Foundation in Support of the

Environmental Protection Agency,

Massachusetts v. EPA, 549 U.S. 497

(2007) .................................................................... 14

Brief for Amicus Curiae the Chamber of

Commerce of the United States of

America in Support of Neither Party,

American Hospital Ass’n v. Becerra, 141

S. Ct. 2883 (2022) ................................................. 13

Brief of Amici Curiae Cato Institute and

Prof. Josh Blackman in Support of

Petitioners, King v. Burwell, 576 U.S. 473

(2015) .................................................................... 14

Brief of Amici Curiae Cato Institute et al. in

Support of Petitioners, Arlington v. FCC,

569 U.S. 290 (2013) .............................................. 14

Brief of Amicus Curiae Landmark Legal

Foundation in Support of Petitioners,

King v. Burwell, 576 U.S. 473 (2015) .................. 14

Brief of Amicus Curiae Landmark Legal

Foundation in Support of Petitioners,

West Virginia v. EPA, 142 S. Ct. 2587

(2022). ................................................................... 13

Brief of Amicus Curiae New England Legal

Foundation in Support of Petitioners,

West Virginia v. EPA, 142 S. Ct. 2587

(2022) .................................................................... 13

Brief of Amicus Curiae Pacific Legal

Foundation in Support of Affirmance,

FDA v. Brown & Williamson, 529 U.S.

120 (2000) ............................................................. 15

Brief of Amicus Curiae Pacific Legal

Foundation in Support of Petitioner,

Seila Law LLC v. CFPB, 140 S. Ct. 2183............ 13

Brief of Amicus Curiae the Buckeye

Institute in Support of Petitioners, West

Virginia v. EPA, 142 S. Ct. 2587 (2022) .............. 13

Brief of Amicus Curiae the Competitive

Enterprise Institute in Support of

Petitioners, West Virginia v. EPA, 142 S.

Ct. 2587 (2022). .................................................... 13

Brief of the Cato Institute and Mountain

States Legal Foundation as Amici Curiae

in Support of Petitioners, West Virginia v.

EPA, 142 S. Ct. 2587 (2022) ................................ 13

Brief of the Cato Institute et al. as Amici

Curiae in Support of Respondents,

vii

Massachusetts v. EPA, 549 U.S. 497

(2007) .................................................................... 14

Brief of the New Civil Liberties Alliance as

Amicus Curiae in Support of Petitioners,

American Hospital Ass’n v. Becerra, 141

S. Ct. 2883 (2022) ................................................. 13

Brief of U.S. Sens. Sheldon Whitehouse, et

al. in Support of Respondents, West

Virginia v. EPA, 142 S. Ct. 2587 (2022) .............. 23

CATO INST., CATO HANDBOOK FOR CONGRESS

(2003) .................................................................... 16

Centers for Disease Control and Prevention,

Childhood Lead Poisoning Prevention

Program (CLPPP) 30th Anniversary (Feb.

3, 2022),

https://www.cdc.gov/nceh/lead/about/30th

-anniversary.html .................................................. 4

Congress.gov,

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Variants=on&congressGroups%5B%5D=0

&congresses%5B%5D=118&legislationNu

mbers=&legislativeAction=110&sponsor=

on&representative=&senator ................................ 9

Coral Davenport, Republican Drive to Tilt

Courts Against Climate Action Reaches a

Crucial Moment, N.Y. Times (June 19,

2022),

https://www.nytimes.com/2022/06/19/clim

ate/supreme-court-climate-epa.html ................... 18

Craig Green, Deconstructing the

Administrative State: Chevron Debates

viii

and the Transformation of Constitutional

Politics, 101 B.U. L. Rev. 619 (2021) ........... passim

Danielle Ivory & Robert Faturechi, The

Deep Industry Ties of Trump’s

Deregulation Teams, N.Y. Times (July 11,

2017),

https://www.nytimes.com/2017/07/11/busi

ness/the-deep-industry-ties-of-trumpsderegulation-teams.html ..................................... 22

David Coady et al., Global Fossil Fuel

Subsidies Remain Large: An Update

Based on Country-Level Estimates at 2,

IMF working paper (May 2, 2019),

https://www.imf.org/en/Publications/WP/I

ssues/2019/05/02/Global-Fossil-FuelSubsidies-Remain-Large-An-UpdateBased-on-Country-Level-Estimates-46509 ......... 26

David Roberts, The arguments that

convinced a libertarian to support

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12, 2015),

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he-arguments-that-convinced-thislibertarian-to-support-a-carbon-tax .................... 16

DeSmog, ExxonMobil’s Funding of Climate

Science Denial,

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Eli Watkins, Top WH lawyer details Trump

admin’s ‘larger plan’ to shrink regulatory

state, CNN (Feb. 22, 2018),

https://www.cnn.com/2018/02/22/politics/d

on-mcgahn-regulatory-cpac/index.html .............. 24

Erin Webb, Analysis: EPA Under Major

Questions Microscope So Far in 2023,

Bloomberg Law (May 5, 2023),

https://news.bloomberglaw.com/bloomber

g-law-analysis/analysis-epa-under-majorquestions-microscope-so-far-in-2023 ................... 30

Erin Webb, Analysis: Major Questions

Doctrine Filings Are Up in a Major Way,

Bloomberg Law (Feb. 1, 2022),

https://news.bloomberglaw.com/bloomber

g-law-analysis/analysis-major-questionsdoctrine-filings-are-up-in-a-major-way ............... 29

Evan Vorpahl, Leonard Leo’s Court Capture

Web Raised Nearly $600 Million Before

Biden Won; Now It’s Spending Untold

Millions from Secret Sources to Attack

Judge Ketanji Brown Jackson, True

North Rsch. (Mar. 22, 2022),

https://truenorthresearch.org/2022/03/leo

nard-leos-court-capture-web-raisednearly-600-million-before-biden-won-nowits-spending-untold-millions-from-secretsources-to-attack-judge-ketanji-brownjackson .................................................................. 24

Face the Facts USA, Food without fear (Oct.

28, 2013),

https://facethefactsusa.org/facts/foodwithout-fear ............................................................ 5

Federal Aviation Administration, Our

Business,

https://www.faa.gov/jobs/who_we_are/our

_business ................................................................ 8

GianCarlo Canaparo & Jack Fitzhenry,

Chevron Deference, Long Abused by

Federal Agencies, on Supreme Court’s

Chopping Block?, Heritage Found. (May

5, 2023),

https://www.heritage.org/governmentregulation/commentary/chevrondeference-long-abused-federal-agenciessupreme-courts ..................................................... 27

Graham Kendall, Apollo 11 anniversary:

Could an iPhone fly me to the moon?,

Independent (July 9, 2019),

https://www.independent.co.uk/news/scie

nce/apollo-11-moon-landing-mobilephones-smartphone-iphonea8988351.html........................................................ 5

Ian Parry, Still Not Getting Energy Pries

Right: A Global and Country Update on

Fossil Fuel Subsidies at 26, IMF working

papers (Sept. 24, 2021),

https://www.imf.org/en/Publications/WP/I

ssues/2021/09/23/Still-Not-GettingEnergy-Prices-Right-A-Global-andCountry-Update-of-Fossil-Fuel-Subsidies466004 .................................................................. 26

IRA KATZNELSON, FEAR ITSELF: THE NEW

DEAL AND THE ORIGINS OF OUR TIME

(2013) ...................................................................... 4

Jason Zengerle, How the Trump

Administration is Remaking the Courts,

N.Y. Times (Aug. 22, 2018),

https://www.nytimes.com/2018/08/22/mag

azine/trump-remaking-courtsjudiciary.html ....................................................... 25

Jeff Brady, Exxon climate predictions were

accurate decades ago. Still it sowed doubt,

NPR (Jan. 12, 2023),

https://www.npr.org/2023/01/12/11483760

84/exxon-climate-predictions-wereaccurate-decades-ago-still-it-sowed-doubt ............ 2

Jennifer Hijazi, Biden Tailpipe Emission

Rules Face ‘Major Questions’ Legal Wave,

Bloomberg Law (Apr. 14, 2023),

https://news.bloomberglaw.com/environm

ent-and-energy/biden-tailpipe-emissionrules-face-major-questions-legal-wave ................ 29

Jeremy W. Peters, Stephen Bannon

Reassures Conservatives Uneasy About

Trump, N.Y. Times (Feb. 23, 2017),

https://www.nytimes.com/2017/02/23/us/p

olitics/cpac-stephen-bannon-reincepriebus.html ......................................................... 24

Jeremy W. Peters, Trump’s New Judicial

Litmus Test: Shrinking ‘the

Administrative State’, N.Y. Times (Mar.

26, 2018),

https://www.nytimes.com/2018/03/26/us/p

olitics/trump-judges-courtsadministrative-state.html.............................. 27, 28

Jerry Taylor, The Role of Congress in

Monitoring Administrative Rulemaking,

Cato Inst. (Sept. 12, 1996),

https://www.cato.org/testimony/rolecongress-monitoring-administrativerulemaking ..................................................... 16, 21

xii

Jonathan Swan & Maggie Haberman,

Heritage Foundation Makes Plans to Staff

Next G.O.P. Administration, N.Y. Times

(Apr. 20, 2023),

https://www.nytimes.com/2023/04/20/us/p

olitics/republican-president-2024heritage-foundation.html ..................................... 22

Letter from Agricultural Retailers

Association et al. to Honorable Joseph R.

Biden, Jr., President of the United States

(July 11, 2023), available at

https://www.api.org//media/files/news/letterscomments/2023/multi-stakeholder-letterto-biden-on-epa-tailpipe-rules.pdf ....................... 24

Luke Hartig, Trump’s Four-Pronged War on

the Administrative State, Just Security

(Feb. 7, 2018),

https://www.justsecurity.org/51958/presid

ent-trumps-four-pronged-waradministrative-state ............................................ 24

MAEVE P. CAREY, CONG. RESEARCH. SERV.,

R43056, COUNTING REGULATIONS: AN

OVERVIEW OF RULEMAKING, TYPES OF

FEDERAL REGULATIONS, AND PAGES IN THE

FEDERAL REGISTER (2019)...................................... 9

Mariano-Florentino Cuéllar, Foreword,

Administrative War, 82 Geo. Wash. L.

Rev. 1343 (2014) ..................................................... 4

Mark Fenster, The Birth of a “Logical

System”: Thurman Arnold and the

Making of Modern Administrative Law,

84 Or. L. Rev. 69 (2005) ......................................... 4

xiii

Mark Joseph Stern, What the Koch

Brothers’ Money Buys, Slate (May 2,

2018), https://slate.com/news-andpolitics/2018/05/we-now-know-how-thekoch-brothers-and-leonard-leo-buyspecial-favors.html ............................................... 19

Matt Egan, Exxon denies Trump called

CEO for money. But Big Oil is donating

way more to Trump than Biden, CNN

(Oct. 21, 2020),

https://www.cnn.com/2020/10/20/business

/trump-exxon-oil-biden-campaigndonations/index.html ........................................... 25

Matthew H. Goldberg et al., Oil and Gas

Companies Invest in Legislators that Vote

Against the Environment, 117

Proceedings of the Nat'l Acad. of Sciences

5111 (2020) ........................................................... 22

Michele Augusto Riva et al., Lead

Poisoning: Historical Aspects of a

Paradigmatic “Occupational and

Environmental Disease”, 3 Safe Health

Work 11 (2012) ....................................................... 9

National Highway Traffic Safety

Administration, Learn the Facts About

New Cars,

https://www.nhtsa.gov/sites/nhtsa.gov/file

s/documents/newer-cars-safer-cars_factsheet_010320-tag.pdf ............................................. 5

Nichola Groom & Valerie Volcovici, Top US

utility group opposes emissions plan for

existing gas plans, Reuters (Aug. 1, 2023),

https://www.reuters.com/sustainability/cli

xiv

mate-energy/top-us-utility-group-opposesemissions-plan-existing-gas-plantssource-2023-08-01 ................................................ 23

Nicholas Confessore, Koch Brothers’ Budget

of $889 Million for 2016 Is on Par With

Both Parties’ Spending, N.Y. Times (Jan.

26, 2015),

https://www.nytimes.com/2015/01/27/us/p

olitics/kochs-plan-to-spend-900-millionon-2016-campaign.html ....................................... 19

Occupational Safety and Health

Administration, Commonly Used

Statistics,

https://www.osha.gov/data/commonstats .............. 4

Opening Brief of Petitioners Chamber of

Commerce of the United States of

America, State of Alaska, and American

Farm Bureau Federation, Utility Air

Regulatory Group v. EPA, 573 U.S. 302

(2014) .................................................................... 14

Peter J. Wallison, Op-ed, Reclaiming

Legislative Power from the

Administrative State, Am. Enterprise

Inst. (Aug. 2, 2022),

https://www.aei.org/op-eds/reclaiminglegislative-power-from-theadministrative-state ............................................ 27

Peter Stone, Big oil remembers ‘friend’

Trump with millions in campaign funds,

The Guardian (Aug. 9, 2020),

https://www.theguardian.com/usnews/2020/aug/09/big-oil-trumpcampaign-donations-fossil-fuel-industry............. 22

Pew Environment Group, Industry

Opposition to Government Regulation,

https://www.pewtrusts.org/~/media/assets

/2011/03/industry-clean-energyfactsheet.pdf ........................................................... 2

Public Laws

https://www.congress.gov/publiclaws/118th-congress ............................................... 9

Questions Remain on Major Questions

Doctrine, Penn Carey Law (June 30,

2023),

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82-questions-remain-on-major-questionsdoctrine ................................................................. 28

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DESIGNED-IN DANGERS OF THE AMERICAN

AUTOMOBILE (1965),

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n/Gartman/Books/BK_Unsafe_Any_Speed

.htm......................................................................... 5

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Inst. (Aug. 11, 1998),

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politics/courts_law/supreme-court-

xvi

freezes-obama-plan-to-limit-carbonemissions/2016/02/09/ac9dfad8-cf85-11e5abc9-ea152f0b9561_story.html ............................ 23

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House Counts on Kavanaugh in Battle

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courts_law/brett-kavanaugh-and-the-endof-the-regulatory-state-as-we-knowit/2018/08/12/22649a04-9bdc-11e8-8d5ec6c594024954_story.html .................................... 25

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change counter-movement organizations,

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Article_ObstructingActionFoundationFun

.pdf. ................................................................. 15, 16

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Historical Perspective, 38 Stan. L. Rev.

1189 (1986) ............................................................. 4

Ryan Jalsow, Big tobacco kept cancer risk in

cigarettes secret: Study, CBS News (Sept.

30, 2011),

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SHAWN OTTO, THE WAR ON SCIENCE (2016)............ 21

SHELDON WHITEHOUSE, CAPTURED (2017) .............. 19

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Subsidies Data: 2023 Update, IMF

xvii

working papers (Aug. 24, 2023),

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ssues/2023/08/22/IMF-Fossil-FuelSubsidies-Data-2023-Update-537281.................. 25

SourceWatch, Advancing American

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dvancing_American_Freedom ............................. 17

SourceWatch, Contributions of the Bradley

Foundation,

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tle=Contributions_of_the_Bradley_Found

ation ...................................................................... 17

SourceWatch, DonorsTrust and Donors

Capital Fund Grant Recipients,

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onorsTrust_and_Donors_Capital_Fund_G

rant_Recipients .............................................. 15, 28

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tle=Koch_Family_Foundations...................... 16, 28

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Names,

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Triumph of the Environmental

“Administrative State”, 86 U. Cin. L. Rev.

653 (2018) ............................................................... 4

Suzanne Goldenberg & Helena Bengtsson,

Oil and gas industry has pumped

millions into Republican campaigns, The

xviii

Guardian (Mar. 3, 2016),

https://www.theguardian.com/usnews/2016/mar/03/oil-and-gas-industryhas-pumped-millions-into-republicancampaigns............................................................. 22

The Need for a Tighter Particulate AirQuality Standard, 383 N. Eng. J. Med.

680 (2020) ............................................................... 9

U.N. Intergovernmental Panel on Climate

Change, Global Warming of 1.5°C (2019) ............. 9

U.S. Chamber of Commerce, Press Release,

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Reliability and Harm Economy (May 11,

2023),

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U.S. Dep’t of Agric., Have a Question?

AskUSDA,

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with Members and Committees,

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ons-with-members-and-committees ...................... 8

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xix

What’s Wrong with the Supreme Court: The

Big-Money Assault on Our Judiciary:

Hearing Before the S. Comm. on the

Judiciary, 117th Cong. (2021) ............................. 22

STATEMENT OF INTEREST 1

Amici curiae are U.S. Senators Sheldon

Whitehouse of Rhode Island, Mazie Hirono of Hawaii,

Dianne Feinstein of California, and Elizabeth

Warren of Massachusetts. Amici share with this

Court a strong interest in preserving separation of

powers and preventing corrupting influences from

undermining our democracy.

SUMMARY OF THE ARGUMENT

This case is the product of a decades-long effort

by pro-corporate interests to eviscerate the federal

government’s regulatory apparatus, to the detriment

of the American people. Over the last 100 years, our

society has seen wondrous innovation, and

administrative regulation has been crucial to

developing these wonders while safeguarding the

public welfare. As industries grew more complex,

Congress delegated some regulatory authority to

administrative agencies. Chevron deference has

been an important element in this endeavor, allowing

Congress to rely on agency capacity and subjectmatter expertise to help carry out Congress’s broad

policy objectives. Administrative regulations reined

in dangerous industry activities, and our society

became safer and more prosperous.

Though the benefits of these regulations were

evident, industry special interests have long sought

to limit regulation and avoid restraint. Industries

will oppose regulation with 10 to 1 benefit-cost

1 Pursuant to Rule 37.6, no counsel for any party authored this

brief in any part, and no person or entity other than amicus or

amicus’s counsel made a monetary contribution to fund its

preparation or submission.

ratios, 2 proving that they are not trustworthy

stewards of the public welfare. This corporate

indifference to public welfare should come as no

surprise given documented industry quests to cover

up the dangers of climate change and cigarettes. 3

Special interests strategically file lawsuits

challenging administrative rules and regulations,

with coordinated mass filings of amicus curiae briefs,

to convince courts to chip away at administrative

agencies’ regulatory authority. Corporate interests

funnel billions of dollars into think tanks, advocacy

organizations, political elections, and judicial

confirmations. They generate false information,

ingratiate themselves with elected officials, and steer

jurisprudence toward their deregulation goals.

The call here to overturn Chevron and dismantle

agency powers is a special interest solution in search

of a problem; the purported “problem” is actually a

value for the general public. Regulations facilitated

2 Pew Environment Group,

Government Regulation,

Industry Opposition to

https://www.pewtrusts.org/~/media/assets/2011/03/industryclean-energy-factsheet.pdf (noting that the utility industry

opposed regulations to combat acid rain despite generating

benefits valued between $118 billion and $177 billion annually

while costing only $18 billion to $21 billion to implement).

See Jeff Brady, Exxon climate predictions were accurate

decades ago. Still it sowed doubt, NPR (Jan. 12, 2023),

https://www.npr.org/2023/01/12/1148376084/exxon-climatepredictions-were-accurate-decades-ago-still-it-sowed-doubt;

Ryan Jalsow, Big tobacco kept cancer risk in cigarettes secret:

Study,

CBS

News

(Sept.

30,

2011),

https://www.cbsnews.com/news/big-tobacco-kept-cancer-riskin-cigarettes-secret-study.

by Chevron deference have improved the health,

safety, and welfare of the American people.

Unfortunately, this industry-funded operation

has been effective. In West Virginia v. EPA, 4 this

Court significantly limited administrative agency

authority by adopting a so-called “major questions”

doctrine. This new addition in the law led to an

onslaught of challenges to administrative regulatory

authority, many still in litigation. Amidst this

upheaval, it would be rash to further upend

precedent when the effects and understanding of the

newly created “major questions” doctrine are still

developing.

ARGUMENT

CHEVRON, WHICH IS VITAL TO CONGRESS’S

ABILITY TO PROTECT AMERICANS THROUGH

EFFICIENT AND EXPERTISE-BASED REGULATION,

IS UNDER ATTACK IN THIS CASE BY PROCORPORATE SPECIAL INTERESTS

A. Regulation Is A Public Good That

Protects People’s Health, Safety, And

Well-Being

Over the last century, our society has advanced

remarkably. As industries and corporations grew,

their motive to maximize profits caused social harms

and threatened consumer safety.

Regulation

responded.

Heavy equipment and dangerous

chemicals came to mines, factories, and construction

sites; regulators implemented workplace safety

standards. Meatpacking and mass production of

4 142 S. Ct. 2587 (2022).

consumer goods ballooned; regulators implemented

sanitation requirements in production facilities.

Americans widely adopted automobiles; regulators

required seat belts and air bags.

The

modern

economy

necessitated

modernization of the U.S. regulatory framework.

Congress responded to the complexities of the

modern world by ensuring that administrative

agencies have the capacity, flexibility, and expertise

to respond to new developments. 5 Part of that project

was delegating clear and broad authority to executive

agencies and allowing those agencies to adopt and

adapt regulations to respond to new hazards.

As a result, daily life in the United States is

safer. Workplace illnesses, injuries, and deaths

declined. 6 Children on average have lower levels of

lead in their blood. 7 Foodborne illnesses that used to

kill thousands of people per year have been

5 See generally IRA KATZNELSON, FEAR ITSELF: THE NEW DEAL

AND THE ORIGINS OF OUR TIME (2013); Robert L. Rabin, Federal

Regulation in Historical Perspective, 38 Stan. L. Rev. 1189

(1986); Mark Fenster, The Birth of a “Logical System”: Thurman

Arnold and the Making of Modern Administrative Law, 84 Or.

L. Rev. 69 (2005); Mariano-Florentino Cuéllar, Foreword,

Administrative War, 82 Geo. Wash. L. Rev. 1343 (2014);

Stephen M. Johnson, Indeconstructible: The Triumph of the

Environmental “Administrative State”, 86 U. Cin. L. Rev. 653

(2018).

6 Occupational Safety and Health Administration, Commonly

Used Statistics, https://www.osha.gov/data/commonstats.

7 Centers for Disease Control and Prevention, Childhood Lead

Poisoning Prevention Program (CLPPP) 30th Anniversary (Feb.

2022),

https://www.cdc.gov/nceh/lead/about/30thanniversary.html.

practically wiped out. 8 Highways are no longer

“carnage,” 9 and air travel is even safer than highway

travel. 10 In our current age—when the smartphones

in our pockets are more powerful than the computers

used to put man on the moon, and humans are

consuming more natural resources than at any other

time in history—robust federal regulation is needed

more than ever. 11

Congress’s deliberate delegation of policymaking

authority has produced a highly reticulated body of

administrative law. This body of law is designed to

match the flexibility, efficiency, and expertise of

executive branch agencies with robust accountability

to the president, Congress, and the judiciary.

Agency experts report to politically appointed

agency heads nominated by the President and

confirmed by the Senate. These agency heads serve

at the pleasure of the president, who is accountable

Face the Facts USA, Food without fear (Oct. 28, 2013),

https://facethefactsusa.org/facts/food-without-fear.

9 See generally RALPH NADER, UNSAFE AT ANY SPEED: THE

DESIGNED-IN DANGERS OF THE AMERICAN AUTOMOBILE (1965),

http://www.autolife.umd.umich.edu/Design/Gartman/Books/BK

_Unsafe_Any_Speed.htm.

10 National Highway Traffic Safety Administration, Learn the

Facts

About

New

Cars,

https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/newercars-safer-cars_fact-sheet_010320-tag.pdf.

11 See Graham Kendall, Apollo 11 anniversary: Could an iPhone

fly me to the moon?, Independent (July 9, 2019),

https://www.independent.co.uk/news/science/apollo-11-moonlanding-mobile-phones-smartphone-iphone-a8988351.html;

United Nations Environment Programme, We’re gobbling up the

Earth’s resources at an unsustainable rate (Apr. 3, 2019),

https://www.unep.org/news-and-stories/story/were-gobblingearths-resources-unsustainable-rate.

to the people. 12 If the public is unhappy with how

agencies are implementing Congress’s policies, voters

can make that known at the ballot box.

Congress oversees agency actions through

legislative committees dedicated to agency oversight,

and regularly conducts oversight hearings where

heads of agencies are called to account. Congress

retains the power to enact legislation to limit or

reverse agency rulemakings if it disagrees with the

agency’s actions, in some cases on an expedited

calendar. 13 Furthermore, Congress holds the power

of the purse; every appropriations bill presents an

opportunity to expand, correct, or contract agency

authorities. If the public is unhappy with how

Congress is holding agencies accountable, voters can

make that known at the ballot box.

Finally, agencies are accountable to the

judiciary, which has the authority to review an

agency’s statutory interpretations and actions to

ensure the agency’s decisions are reasonable and

follow appropriate processes and procedures. 14

The notion of unaccountable administrative

agencies is a self-serving mythology.

B. Chevron

Deference

Encourages

Efficient And Effective Regulation

In Chevron U.S.A. v. Natural Resources Defense

Council, 15 this Court announced the Chevron

12 Seila Law LLC v. Consumer Financial Protection Bureau, 140

S. Ct. 2183, 2197, 2203 (2020).

13 Congressional Review Act, 5 U.S.C. §§ 801-808.

14 5 U.S.C. §§ 704, 706; Chevron U.S.A., Inc. v. NRDC, Inc., 467

U.S. 837, 844 (1984).

15 467 U.S. 837 (1984).

deference framework, which requires courts to defer

to an executive agency’s reasonable interpretation of

an ambiguous statute that Congress charged the

agency with administering. 16

For nearly four

decades, Chevron has been a successful piece of the

modern regulatory safeguards described above.

Congress has long legislated against the backdrop of

Chevron deference, which allows expert agencies—

themselves created by Congress—to implement

statutes passed by Congress. Overruling Chevron

would shift regulatory authority away from Congress

and executive agencies to the courts, undermining

decades of congressional action, upsetting settled

reliance by industries and lawmakers, and

hampering the functioning of the federal

government.

Chevron ensures that unelected courts respect

career experts who report to politically accountable

agency heads as agencies implement and refine

Congress’s broad policy objectives. For example, to

maintain safe air travel, Congress delegated

authority for regulating the manufacturing and

maintenance of aircraft and the use of navigable U.S.

airspace to the Federal Aviation Administration

(FAA). 17 To ensure the safe consumption of meat

products, Congress delegated authority for

regulating processing facility sanitation and meat

storage and handling requirements to the U.S.

Department of Agriculture (USDA). 18 Congress

entrusts these agencies to fulfill these roles because

it is not equipped to perform agency functions or

16 Id. at 843.

17 49 U.S.C. §§ 40103, 44701.

18 21 U.S.C. §§ 608, 624.

legislate with the kind of specificity or expertise

required in today’s modern, complex industries. 19

For air traffic alone, the FAA has more than 35,000

employees, including air traffic controllers,

technicians, engineers, and support personnel to

assist with directing flights in U.S. airspace. 20 The

USDA employs approximately 9,000 employees in its

Food Safety and Inspection Service to ensure the safe

production of meat, poultry, and egg products. 21 By

contrast, the U.S. House of Representatives employs

approximately 10,000 staffers 22 who must split their

time across a legion of substantive, policy, and

political obligations. Congress simply does not have

the time, staff, or expertise to perform the

responsibilities of every regulatory agency.

Congress is, by design, a slow-moving institution.

Our bicameral legislature is composed of two

deliberative bodies that must engage with each other

as well as the president to pass legislation into law. 23

Public protection can demand flexible and highly

technical responses to conditions that change

Mistretta v. United States, 488 U.S. 361, 372–73 (1989)

(acknowledging that “in our increasingly complex society,

replete with ever changing and more technical problems,

Congress simply cannot do its job absent an ability to delegate

power under broad general directives”).

Federal

Aviation

Administration, Our

Business,

https://www.faa.gov/jobs/who_we_are/our_business.

21 U.S. Dep’t of

Agric., Have a Question? AskUSDA,

https://ask.usda.gov/s/article/How-many-food-inspectors-areemployed-by-FSIS.

22 U.S. House of Representatives, Positions with Members and

Committees,

https://www.house.gov/employment/positionswith-members-and-committees.

23 See Gundy v. United States, 139 S. Ct. 2116, 2134 (2019)

(Gorsuch, J., dissenting).

rapidly. For instance, scientific understanding of the

harmfulness of fine particulate matter, the poisonous

potential of lead paint and pipes, and the dangers of

fossil fuel emissions-driven planetary warming has

changed significantly with time. 24 Moreover, the

technology to reduce and eliminate pollutants is

constantly evolving. The public’s well-being requires

that the federal government respond quickly and

flexibly, particularly to emerging environmental

dangers and evolving remedial processes.

But

Congress is not equipped to do so. So far in 2023,

Congress has passed thirty bills, only thirteen of

which have been signed into law. 25 Even if agencies

completed 99% of the work required to develop and

draft new rules, requiring Congress to enact the

thousands of regulations that are published by

agencies each year would still vastly exceed the hours

on the legislative calendar. 26

24 See, e.g., Independent Particulate Matter Review Panel, The

Need for a Tighter Particulate Air-Quality Standard, 383 N.

Eng. J. Med. 680, 680-83 (2020); Michele Augusto Riva et al.,

Lead Poisoning: Historical Aspects of a Paradigmatic

“Occupational and Environmental Disease”, 3 Safe Health Work

11, 11-14 (2012); United Nations Intergovernmental Panel on

Climate Change, Global Warming of 1.5 °C (2018).

Congress.gov,

https://www.congress.gov/quicksearch/legislation?wordsPhrases=&wordVariants=on&congres

sGroups%5B%5D=0&congresses%5B%5D=118&legislationNu

mbers=&legislativeAction=110&sponsor=on&representative=

&senator; Public Laws https://www.congress.gov/publiclaws/118th-congress.

26 See MAEVE P. CAREY, CONG. RESEARCH SERV., R43056,

COUNTING REGULATIONS: AN OVERVIEW OF RULEMAKING, TYPES

OF FEDERAL REGULATIONS, AND PAGES IN THE FEDERAL

documents published in the Federal Register each year between

2005-2018).

Opponents of Chevron deference argue that it

violates separation of powers by moving Congress’s

policymaking authority to regulatory agencies. On

the contrary, Chevron deference furthers the

separation of powers by encouraging effective

policymaking according to Congress’s wishes:

Congress empowers an agency through statute,

giving deliberate deference to agency experts to hash

out the technical and policy details, while

maintaining a highly lively array of means to correct

the agency when required. Chevron helps Congress

responsibly oversee institutions “to confront new

public needs.” 27

In the same way that the Constitution is not a

“suicide pact,” 28 it is equally not a mandate to inflict

mass harm or casualty on the American people. The

fact that Congress, over the last forty years, has

deliberately treated Chevron deference as a

background presumption when assigning statutory

authority to agencies shows that this system works

for Congress and the American people. If Congress

believed Chevron deference were an impediment to

effective policymaking or encroached on its

authorities, then Congress long ago would have

amended the Administrative Procedure Act to

eliminate it. Instead, Congress, voting with its feet,

See Craig Green, Deconstructing the Administrative State:

Chevron Debates and the Transformation of Constitutional

Politics, 101 B.U. L. Rev. 619, 702 (2021).

28 Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Burton, J.,

dissenting).

stands firmly behind agency discretion in carrying

out Congress’s broad policy objectives. 29

Eliminating Chevron deference would not just

conflict

with

Congress’s

well-established

policymaking desires; it would erode the separation

of powers by shifting policymaking power from

Congress and the executive to the unaccountable

judiciary. 30 Even if it were true that there is not

adequate accountability in administrative agencies,

the answer to that is hardly to remove that authority

to even-less-accountable courts, or to a Congress that

would be so practically overwhelmed as to render

accountability meaningless.

It should be noted that it is in administrative

agencies that industries encounter expert oversight.

Congressional committees have limited expertise in

technical questions; courts usually have none. It is

very much in industries’ interest to move decisionmaking away from experts and into forums where the

industry’s information advantage and political and

financial clout can sway outcomes to the benefit of

industry. An entire literature exists about regulatory

agency “capture”; a similar goal is achieved by

regulatory agency impotence.

29 See Green, supra note 27, at 702, 666-68 (2021) (“Efforts to

destroy administrative deference have failed in Congress for

almost fifty years.”); cf. United States v. Midwest Oil Co., 236

U.S. 459, 472-73 (1915) (“Both officers, lawmakers, and citizens

naturally adjust themselves to any long-continued action of the

Executive Department, on the presumption that unauthorized

acts would not have been allowed to be so often repeated as to

crystallize into a regular practice.”).

30 Id. at 679.

Congress has chosen (and for decades reaffirmed

its choice) to maintain this balanced and proven

process. To overrule the choices of Congress and

arrogate significant swaths of government

policymaking to courts would be a defiance, not a

defense, of the separation of powers.

C. Petitioners’ Amici Are Collaborators

In A Decades-Long, Industry-Funded

Attempt To Undermine Government

Regulation

The modern U.S. regulatory apparatus is rich

with oversight—executive, legislative, and judicial—

and the notions of an unaccountable regulatory state

described above are a canard propagated by special

interests. The special interests in this case, arguing

from behind a flotilla of front group amici supporting

petitioners, deploy this canard to create an

accountability gap—a gap where regulation fails

because Congress has not the time or expertise to

regulate and agencies have not the authority to do so.

The flotilla of amici supporting petitioners

includes several repeat players that pushed for

deregulation in cases before this Court over the last

twenty-three years. Two terms ago, seven amici,

including The Buckeye Institute, Cato Institute,

Competitive Enterprise Institute, Landmark Legal

Foundation, New Civil Liberties Alliance, New

England Legal Foundation, and Mountain States

Legal Foundation, filed briefs in West Virginia v. EPA

urging the Court to limit executive regulatory

authority. 31 Amici U.S. Chamber of Commerce,

National Right to Work Legal Defense Foundation,

New Civil Liberties Union, and Pacific Legal

Foundation filed briefs in American Hospital

Association v. Becerra, arguing that the Court should

limit Chevron deference. 32

These repeat players seek to undermine the

federal government’s regulatory authority, to benefit

corporate interests. Pacific Legal Foundation in

Seila Law v. Consumer Financial Protection Bureau

asked this Court to throw out the entirety of the

Consumer Financial Protection Bureau. 33

Cato

Institute, Landmark Legal Foundation, and

Mountain States Legal Foundation filed amicus

briefs in King v. Burwell, arguing that the executive

branch’s implementation of the Affordable Care Act,

including resolving inconsistencies in the statutory

31 See Brief of Amicus Curiae the Buckeye Institute in Support

of Petitioners, West Virginia v. EPA, 142 S. Ct. 2587 (2022);

Brief of the Cato Institute and Mountain States Legal

Foundation as Amici Curiae in Support of Petitioners, id.; Brief

of Amicus Curiae the Competitive Enterprise Institute in

Support of Petitioners, id.; Brief of Amicus Curiae Landmark

Legal Foundation in Support of Petitioners, id.; Amicus Curiae

Brief of the New Civil Liberties Alliance in Support of

Petitioners, id.; and Brief of Amicus Curiae New England Legal

Foundation in Support of Petitioners, id.

32 See Brief for Amicus Curiae the Chamber of Commerce of the

United States of America in Support of Neither Party, American

Hospital Ass’n v. Becerra, 141 S. Ct. 2883 (2022); Amicus Curiae

Brief for the National Right to Work Legal Defense Foundation,

Inc. in Support of Petitioners, id.; Brief of the New Civil

Liberties Alliance as Amicus Curiae in Support of Petitioners,

id.; and Brief Amicus Curiae of Pacific Legal Foundation in

Support of Petitioners, id.

33 Brief of Amicus Curiae Pacific Legal Foundation in Support

of Petitioner, Seila Law LLC v. CFPB, 140 S. Ct. 2183.

U.S. Chamber of

text, was unconstitutional. 34

Commerce as a petitioner in Utility Air Regulatory

Group v. EPA, and Mountain States Legal

Foundation and Pacific Legal Foundation as amici

argued that EPA’s regulation of greenhouse gas

emissions from new motor vehicles was unlawful. 35

Cato Institute filed an amicus brief in Arlington v.

FCC arguing that this Court should not defer to the

FCC on the interpretation of its own jurisdictional

statute. 36

Cato Institute and Pacific Legal

Foundation filed amicus briefs in Massachusetts v.

EPA, arguing that EPA lacked the authority to

regulate greenhouse gases altogether. 37 And Pacific

Legal Foundation also filed an amicus brief in FDA

v. Brown & Williamson Tobacco Corp., arguing that

the FDA did not have authority to regulate tobacco

products and that tobacco regulation should rest

See Brief of Amici Curiae Cato Institute and Prof. Josh

Blackman in Support of Petitioners, King v. Burwell, 576 U.S.

473 (2015); Brief of Amicus Curiae Landmark Legal Foundation

in Support of Petitioners, id., and Amicus Curiae Brief of

Mountain States Legal Foundation in Support of Petitioners, id.

35 See Opening Brief of Petitioners Chamber of Commerce of the

United States of America, State of Alaska, and American Farm

Bureau Federation, Utility Air Regulatory Group v. EPA, 573

U.S. 302 (2014); Amicus Curiae Brief of Mountain States Legal

Foundation in Support of Petitioners, id.; and Brief Amicus

Curiae of Pacific Legal Foundation et al. in Support of

Petitioners, id.

36 See Brief of Amici Curiae Cato Institute et al. in Support of

Petitioners, Arlington v. FCC, 569 U.S. 290 (2013).

37 See Brief of the Cato Institute et al. as Amici Curiae in

Support of Respondents, Massachusetts v. EPA, 549 U.S. 497

(2007), and Brief Amicus Curiae of Pacific Legal Foundation in

Support of the Environmental Protection Agency, id.

solely with Congress given its significant economic

and public health impacts. 38

The common thread through these antiregulatory positions is massive funding from procorporate special interests. The fossil fuel industry

particularly has long sought to undermine executive

regulatory authority.

For example, amici The

Buckeye Institute, Cato Institute, Competitive

Enterprise Institute, Landmark Legal Foundation,

Mountain States Legal Foundation, National Right

to Work Legal Defense Foundation, New Civil

Liberties Alliance, and Pacific Legal Foundation

have all received hundreds of thousands, and

sometimes millions, of dollars from Donors Trust and

Donors Capital Fund—two donor-advised funds that

allow ultra-wealthy interests to direct funding

anonymously. 39 Donors Trust—described as the

“dark-money ATM of the right” 40—and Donors

Capital Fund have for instance contributed over a

third of a trillion dollars to fund the climate denial

operation. 41

See Brief of Amicus Curiae Pacific Legal Foundation in

Support of Affirmance, FDA v. Brown & Williamson, 529 U.S.

120 (2000).

39 SourceWatch, DonorsTrust and Donors Capital Fund Grant

Recipients,

https://www.sourcewatch.org/index.php/DonorsTrust_and_Don

ors_Capital_Fund_Grant_Recipients.

40 Andy Kroll, Exposed: The Dark-Money ATM of the

Conservative Movement, Mother Jones (Feb. 5, 2013),

https://www.motherjones.com/politics/2013/02/donors-trustdonor-capital-fund-dark-money-koch-bradley-devos.

41 Robert J. Brulle et al., Obstructing action: foundation funding

and US climate change counter-movement organizations,

https://cssn.org/wp-content/uploads/2020/10/Brulle2021_

Article_ObstructingActionFoundationFun.pdf.

The Buckeye Institute, Cato Institute,

Competitive Enterprise Institute, New Civil

Liberties Alliance, and Pacific Legal Foundation

have also received substantial funding from the Koch

family foundations—another top ten funder for the

climate change counter-movement. 42 Cato Institute,

which the Koch family founded, has been

instrumental in developing and promoting the

industry “intellectual capital” that undergirds these

challenges to executive authority—from new rightwing legal theories to anti-regulation handbooks for

members of Congress to whitepapers arguing that

“Federal Agency Guidelines Threaten Your

Liberty.” 43 The Bradley Foundation, yet another topten grantor for climate change denial, has funded The

Buckeye Institute, Cato Institute, Competitive

SourceWatch,

Koch

Family

Foundations,

https://www.sourcewatch.org/index.php?title=Koch_Family_Fo

undations; Brulle et al., supra note 41, at 3.

Jerry Taylor, The Role of Congress in Monitoring

Administrative Rulemaking, Cato Inst. (Sept. 12, 1996),

https://www.cato.org/testimony/role-congress-monitoringadministrative-rulemaking

(stating

that

delegation

“undermin[es] democracy”); CATO INST., CATO HANDBOOK FOR

CONGRESS 79 (2003) (describing delegation as “The Corrosive

Agency of Democracy”); Robert A. Anthony, Unlegislated

Compulsion: How Federal Agency Guidelines Threaten Your

Liberty, Cato Inst. (Aug. 11, 1998), https://www.cato.org/policyanalysis/unlegislated-compulsion-how-federal-agencyguidelines-threaten-liberty. In 2014, Taylor realized he, Cato,

and the rest of the right-wing anti-climate groups were

misleading the public about climate change. In a noisy exit, he

left Cato and began supporting policies to reduce greenhouse

gas emissions.

See David Roberts, The arguments that

convinced a libertarian to support aggressive action on climate,

Vox

(May

12,

2015),

https://www.vox.com/2015/5/12/8588273/the-arguments-thatconvinced-this-libertarian-to-support-a-carbon-tax.

Enterprise Institute, Landmark Legal Foundation,

New Civil Liberties Alliance, and Pacific Legal

Additionally, many of

Foundation as well. 44

petitioners’ amici have received funding directly from

fossil fuel corporations. For example, ExxonMobil

has donated significant sums to Cato Institute,

Competitive Enterprise Institute, Landmark Legal

Foundation, Mountain States Legal Foundation,

Pacific Legal Foundation, and the U.S. Chamber of

Commerce. 45

Funding of petitioners’ amici also comes from

sources attempting to influence outcomes in these

regulatory cases from other directions. Advancing

American Freedom received $1.5 million from

Leonard Leo’s Concord Fund between 2020 and

2021. 46 The Concord Fund, also known under a

“fictitious name,” 47 Judicial Crisis Network, has

expended millions of dollars to recommend and

confirm far-right, anti-regulation judges to the

federal bench, and to fund Republican campaigns for

state attorneys general 48 who then challenge federal

regulations before those sympathetic judges.

SourceWatch, Contributions of the Bradley Foundation,

https://www.sourcewatch.org/index.php?title=Contributions_of

_the_Bradley_Foundation; Brulle et al., supra note 41.

45 DeSmog, ExxonMobil’s Funding of Climate Science Denial,

https://www.desmog.com/exxonmobil-funding-climate-sciencedenial.

SourceWatch,

Advancing

American

Freedom,

https://www.sourcewatch.org/index.php/Advancing_American_

Freedom.

47 State Corporation Commission, Fictitious Names,

https://scc.virginia.gov/pages/Fictitious-Names.

48 Coral Davenport, Republican Drive to Tilt Courts Against

Climate Action Reaches a Crucial Moment, N.Y. Times (June 19,

Many of the other twenty-three amici supporting

petitioners also likely have ties to special interest

groups. However, because so many industry front

groups do not disclose their donors, the parties, the

Court, and the public are denied a more complete

understanding of the linkages. 49 We do know that

amici’s industry-funded and industry-promoted

arguments would empower and enrich corporations

at the expense of the public health, safety, and

welfare.

Proper disclosure may well show that these

groups are essentially one coordinated machine. The

Court should be wary of these groups’ industrydriven narratives.

II.

THE COURT SHOULD REJECT EFFORTS TO

ENLIST

INDUSTRY-DRIVEN

DEREGULATORY AGENDA

The assault in this case on the regulatory system

is not an isolated effort. For years, regulated

interests have funded a full-scale campaign to

delegitimize and dismantle federal regulations. The

Court should proceed cautiously before contributing

to their sought-for degradation of our American

regulatory system.

2022), https://www.nytimes.com/2022/06/19/climate/supremecourt-climate-epa.html.

49 Furthermore, the Court’s failure to meaningfully enforce its

amicus disclosure under Rule 37.6 prevents the public from

knowing who is truly behind amici advocating before the Court.

A. The Attack On Chevron In This Case Is

Part Of A Larger, Industry-Driven

Campaign To Undermine Regulatory

Agencies And Expand Corporate

Profits

The attack on Chevron in this case by industryfunded groups is not surprising. The American

regulatory system is a massive value to the American

people. However, certain regulated industries resent

the constraints these regulations place upon them.

These industries have spent billions to undo these

constraints, through massive public-relations

operations, the purchasing of political capital

through campaign-finance spending, and cases such

as this one—seeded through years of industry

spending and buoyed by flotillas of industry amici. 50

The foundation for such cases often begins with

“intellectual capital” conjured by industry-funded

50 See, e.g., Mark Joseph Stern, What the Koch Brothers’ Money

Buys, Slate (May 2, 2018), https://slate.com/news-andpolitics/2018/05/we-now-know-how-the-koch-brothers-andleonard-leo-buy-special-favors.html (discussing the Koch

Brothers’ funding of deregulatory academic institutions); Kroll,

supra note 40; Alexander Hertel-Fernandez, Caroline Tervo,

and Theda Skocpol, How the Koch brothers built the most

powerful rightwing group you’ve never heard of, The Guardian

(Sept.

26,

2018),

https://www.theguardian.com/usnews/2018/sep/26/koch-brothers-americans-for-prosperityrightwing-political-group; SHELDON WHITEHOUSE, CAPTURED

147-58 (2017) (discussing dark-money industry funding of

plaintiffs, counsels, and amici curiae in pro-industry litigation);

Nicholas Confessore, Koch Brothers’ Budget of $889 Million for

2016 Is on Par With Both Parties’ Spending, N.Y. Times (Jan.

26,

2015),

https://www.nytimes.com/2015/01/27/us/politics/kochs-plan-tospend-900-million-on-2016-campaign.html.

This “intellectual

front groups and scholars. 51

capital” helps “frame, filter, or shape the outcome of

. . . decision-making process[es]” to benefit the

deregulatory agenda. 52 These ideas are then spread

and amplified through pseudo-grassroots organizing,

legislative

lobbying,

and

industry-financed

conferences, before being deployed as legal

arguments in courtrooms.

For example, petitioners and their amici argue

that Chevron’s promotion of “agency policymaking

succeeds only in confirming that Chevron ‘is nothing

more than a judicially orchestrated shift of power

from Congress to the Executive Branch.’” 53 They

argue that “Chevron should be overruled, and the

decision below should be reversed so that the liberty

of the small businesses that pursued this matter all

the way to this Court is secured.” 54 Regulated

industries have long sought to convince policymakers

and the Court that giving agency experts the

AMANDA HOLLIS-BRUSKY, IDEAS WITH CONSEQUENCES: THE

FEDERALIST

SOCIETY

AND

THE

CONSERVATIVE

COUNTERREVOLUTION 7, 12 (2014).

52 Id.

Br. for Pet’rs at 27 (quoting Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150). See also

Br. of Pacific Legal Foundation as Amicus Curiae in Supp. of

Pet’rs at 10-11; Br. of America First Legal Foundation as

Amicus Curiae in Supp. of Pet’rs at 2; Br. Amicus Curiae of

Chamber of Commerce of the United States of America in Supp.

of Pet’rs at 2-3.

54 Br. for Pet’rs at 52. See also Br. Amicus Curiae of Chamber

of Commerce of the United States of America in Supp. of Petr’s

at 4.

flexibility to address complex and difficult issues

threatens “individual liberty.” 55

This “freedom” narrative that big, regulated

industries have tried to push on the Court is false.

The regulations bemoaned by these industries in fact

provide the American people with freedom—freedom

from injury, death, and “the tyranny of others’ stupid

decisions.” 56 The constraints on corporate actions

imposed by these regulations are no different than

numerous “limitations on our individual freedoms”

that each of us regularly accept “to gain greater

freedom,” through “regulations that reduce smog,

acid rain, ozone destruction, the use of DDT,

backyard burning of garbage, driving while

intoxicated, noise pollution, lead in paint and

gasoline, certain carcinogens, water pollution—and

more recently, exposure to secondhand smoke,

injuries caused by not wearing seat belts, and texting

while driving.” 57 The freedom to cut corners, pollute,

and escape accountability is not a real freedom; it is

theft of the freedom of others to be spared the

polluters’ harms.

No industry has devoted more resources to

dismantling government regulations than the fossil

fuel industry. That industry spends vast sums on

campaign

contributions,

supposedly

“independent” spending groups and “issue ads,” and

on an extensive apparatus for the dissemination of

fake science and industry propaganda, all to block

55 Br. for Pet’rs at 32.